Friday, November 13, 2009

Today, Attorney General Eric Holder announced that Khalid Shaikh Mohammed, self-described mastermind of the 9/11 attacks, and four of his co-conspirators, will be tried in Federal court in New York. Candidate Obama made it clear during the presidential campaign that he believed the terrorists should be tried in the criminal court system, but hearing it with my own ears this morning was surreal. Understandably, many family members of the victims of these attacks are outraged.

“Families are furious about this,” said Debra Burlingame, whose brother Chic Burlingame was the American Airlines pilot of one of the planes hijacked on Sept. 11. She said more than 300 family members have implored the administration not to move the trial to New York. “They know we don’t support this. We support military commissions but they are going to see a wave of fury, and I don’t think they’re prepared for it,” she said Friday after the decision became public. [snip]

Burlingame complained that the legal proceedings in New York will shift the focus to the treatment the defendants received, rather than the crimes they are alleged to have committed.

“This is all going to be about waterboarding and talking about how they were ‘tortured.’ Their lawyers are going turn these people into victims,” she said.

In his blog on the Corner of National Review online, Andy McCarthy agrees (From Rush Limbaugh):

This summer, I theorized that Attorney General Eric Holder — and his boss — had a hidden agenda in ordering a re-investigation of the CIA for six-year-old alleged interrogation excesses that had already been scrutinized by non-partisan DOJ prosecutors who had found no basis for prosecution. The continuing investigations of Bush-era counterterrorism policies (i.e., the policies that kept us safe from more domestic terror attacks), coupled with the Holder Justice Department's obsession to disclose classified national-defense information from that period, enable Holder to give the hard Left the "reckoning" that he and Obama promised during the 2008 campaign. It would be too politically explosive for Obama/Holder to do the dirty work of charging Bush administration officials; but as new revelations from investigations and declassifications are churned out, Leftist lawyers use them to urge European and international tribunals to bring "torture" and "war crimes" indictments. Thus, administration cooperation gives Obama's base the reckoning it demands but Obama gets to deny responsibility for any actual prosecutions.

Today's announcement that KSM and other top al-Qaeda terrorists will be transferred to Manhattan federal court for civilian trials neatly fits this hidden agenda. Nothing results in more disclosures of government intelligence than civilian trials. They are a banquet of information, not just at the discovery stage but in the trial process itself, where witnesses — intelligence sources — must expose themselves and their secrets.

Let's take stock of where we are at this point. KSM and his confederates wanted to plead guilty and have their martyrs' execution last December, when they were being handled by military commission. As I said at the time, we could and should have accommodated them. The Obama administration could still accommodate them. After all, the president has not pulled the plug on all military commissions: Holder is going to announce at least one commission trial (for Nashiri, the Cole bomber) today.

Moreover, KSM has no defense. He was under American indictment for terrorism for years before there ever was a 9/11, and he can't help himself but brag about the atrocities he and his fellow barbarians have carried out.

So: We are now going to have a trial that never had to happen for defendants who have no defense. And when defendants have no defense for their own actions, there is only one thing for their lawyers to do: put the government on trial in hopes of getting the jury (and the media) spun up over government errors, abuses and incompetence. That is what is going to happen in the trial of KSM et al. It will be a soapbox for al-Qaeda's case against America. Since that will be their "defense," the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and — depending on what judge catches the case — they are likely to be given a lot of it. The administration will be able to claim that the judge, not the administration, is responsible for the exposure of our defense secrets. And the circus will be played out for all to see — in the middle of the war. It will provide endless fodder for the transnational Left to press its case that actions taken in America's defense are violations of international law that must be addressed by foreign courts. And the intelligence bounty will make our enemies more efficient at killing us.

For eighteen years, Mr. McCarthy was an Assistant United States Attorney in the Southern District of New York. From 1993 through 1995, he led the terrorism prosecution against Sheikh Omar Abdel Rahman and eleven others in connection with the 1993 World Trade Center bombing and a plot to bomb New York City landmarks. For five years, he was the Chief Assistant U.S. Attorney of the Southern District’s satellite office in White Plains, and, following the 9/11 attacks, he supervised the Justice Department’s Command Post near Ground Zero in New York City.

Ask yourself this question: suppose that Khalid Sheikh Mohammed's trial results in an acquittal or a hung jury. Would the Obama administration really let him go? If so, they are crazy. If not, why are they holding the trial?